Allahabad High Court
Smt. Maya Devi vs Collector Sitapur And Others on 16 September, 2025
Author: Irshad Ali
Bench: Irshad Ali
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
Neutral Citation No. - 2025:AHC-LKO:56770
HIGH COURT OF JUDICATURE AT ALLAHABAD
LUCKNOW
WRIT - C No. - 1002280 of 2001
Smt. Maya Devi
.....Petitioner(s)
Versus
Collector Sitapur And Others
.....Respondent(s)
Counsel for Petitioner(s)
:
P.N. Dwivedi, Rama Pati Shukla, Shravan Kumar
Counsel for Respondent(s)
:
C.S.C., G.P. Pandey, R.N. Gupta
Court No. - 3
HON'BLE IRSHAD ALI, J.
A.F.R.
1. Heard Sri R.P. Shukla, learned counsel for petitioner and learned Additional CSC for the respondent - State.
2. Notice was issued to respondent - gaon sabha but no one appears and notice has been found deemed to be sufficient.
3. By means of present writ petition, the petitioner has assailed the order dated 27.04.2001 passed by Collector, Sitapur in case No.34 under Section 198 (4) UPZA & LR Act, 1950.
3. Respondent Nos.2 to 9 instituted case No.34; Hiralal vs. Smt. Maya Devi and other before the Collector, Sitapur under Section 198 (4) of 1950 Act for cancelling the lease granted in favour of the petitioner in respect of gata No.293 area 1.60 dismal situated in village Gyan sagar, H/o Mishrikh Rural, Pargana and Tehsil Mishrikh District Sitapur.
4. The Collector, Sitapur called for the report from the District Government Counsel (DGC) Revenue, who submitted his report dated 18.04.2001 mentioning therein that the case should be filed under Section 202 of the Act, 1950 and the suit under Section 198 (4) of the Act, 1950 was not maintainable.
5. The Collector proceeded in ex parte manner under Section 198 (4) of the Act without issuing notices to the petitioner. The patta / lease was granted in favour of Late Kalyan, father of the petitioner on 09.12.1960. The petitioner is only issue of Late Kalyan, therefore, she succeeded on the land and her name was recorded in the revenue records. Late Kalyan has paid land revenue in his lifetime and after his death, the petitioner being successor / heir / legal representative is entitled to be heard before passing the order under Section 198 (4) of the Act, 1950. The provisions of Section 198 (4) of the Act, 1950 are mandatory and show cause notice is necessary to be served in the instant case.
6. The then Gram Pradhan Sri Putan Singh instituted a suit No.2/3/4/5 under Section 202 of the Act of 1950 for eviction of the petitioner from the land in dispute before the Sub Divisional Officer / Deputy Collector, Mishrikh, District Sitapur. The notices were issued to the petitioner by the SDO and the petitioner appeared and filed written statement. The parties adduced their evidence and the suit was rejected vide judgment and order dated 12.05.1988 by the SDO vide order dated 12.05.1988.
7. Submission of learned counsel for the petitioner is that the Gram Pradhan or any person of the village has not assailed the order dated 12.05.1988 before any competent authority. Consequently, the order has become final and the issue cannot be re-agitated that too after lapse of more than 40 years. Hence, the proceedings under Section 198 (4) of the Act of 1950 were not maintainable.
8. He next submitted that the lease was granted to petitioner's father Late Kalyan was tested in the above said suit instituted under Section 202 of the Act of 1950 and it was found that he was quite eligible to get the lease. The question of eligibility cannot be tested after the lapse of more than 40 years.
9. He next submitted that the proceedings under Section 202 of the Act are regular proceedings, hence it has binding effect upon the proceedings instituted under Section 198(4) of the Act of 1950 and the impugned order dated 27.04.2001 passed by the Collector is illegal.
10. He next submitted that the gram sabha of the State of U.P. has filed no counter affidavit rebutting the averments made in the writ petition. The principle of non traverse shall be applicable and the averments made in the writ petition shall be deemed to be true.
11. His last submission is that the application beyond the limitation provided under Section 198 (6) of the Act of 1950 cannot be instituted under Section 198 (4) of the Act of 1950. In support of his submissions, he placed reliance upon a judgment in the case of Suresh Giri and ors. Vs. Board of Revenue, U.P. Allahabad and ors.; Writ B No.4570 of 2010. The principles laid down by this Court in the case of Suresh Giri (Supra), has been relied upon in the case of Jiyaram and ors. Vs. The State of U.P. and Ors.; (2012) 115 RD 372. The judgment has further been relied upon in the case of Shabhunath Rai Vs. Board of Revenue, U.P. and ors. This Court has further been pleased to hold that the proceedings under Section 198 (4) of the Act of 1950 cannot be instituted beyond the limitation.
12. The provisions of Section 198 (4) of the Act of 1950 are mandatory and show cause notice is necessary to be served but in the instant case specific averment has been made in paragraph 4 of the writ petition, which has not been denied by filing counter affidavit. Section 198 (5) of the Act of 1950 shall not be applicable in the instant case for the reason that no case was pending against the petitioner on 18.08.1980 before any court or authority. Hence, it was necessary to serve show cause notice before passing the impugned order.
13. It is also mandatory that show cause notice under Section 198(5) of the Act of 1950 may be issued within 7 days from the date of allotment was made. Lease to late Kalyan was granted on 09.12.1960, therefore, the show cause notice must have been issued within seven days, hence, the impugned order dated 27.04.2001 is illegal, arbitrary and having been passed without complying the principles of natural justice.
14. A query was made to learned counsel for the petitioner that against the order passed under Section 198 (4) on 27.04.2001, there is alternative remedy to approach Board of Revenue. On the query, learned counsel for the petitioner placed reliance upon a judgment in the case of Assistant Commissioner of State Tax and others Vs. Commercial Steel Limited; (2022) 16 SCC 447, wherein it was held as under:
"10. The respondent had a statutory remedy under Section 107. Instead of availing of the remedy, the respondent instituted a petition under Article 226. The existence of an alternative remedy is not an absolute bar to the maintainability of a writ petition under Article 226 of the Constitution. But a writ petition can be entertained in exceptional circumstances where there is:
(i) a breach of fundamental rights;
(ii) a violation of the principles of natural justice;
(iii) an excess of jurisdiction; or
(iv) a challenge to the vires of the statute or delegated legislation."
He again placed reliance upon a judgment in the case of Suresh Giri (Supra), wherein it has been held as under:
"The Collector is empowered under Section 198 (4) of the Act of his own motion or on the application of any person aggrieved to cancel the allotment of the Gaon Sabha land made in favour of any person as well as the lease, if any, if he is satisfied that the allotment made is irregular. The power of cancellation of allotment of land so made cannot obviously be exercised in violation of the principles of natural justice and it is imperative to provide an opportunity of hearing to the person concerned i.e. the allottee of the land before passing an order of cancellation. It is with this view that section 198 (5) of the Act specifically provides for issuing / sending a show cause notice upon the person concerned before passing an order of cancellation of allotment or lease."
Further reliance has been placed in the case of Jiya Ram & 16 others Vs. State of U.P. and others; (2012) 115 RD 372. Relevant portion of the judgment is reproduced below:
"Specific plea of limitation was raised before the Collector in terms of Section 198(6) of the Act in which it was specifically stated that no proceedings can be initiated under Section 198(4) of the Act beyond November 1987. Addl. Collector has not addressed himself on this issue and has cancelled the allotment only on the ground that there is no prior approval in favour of the petitioners. By analysing the import of the judgment, it be seen that the Collector has misdirected itself in not addressing the issue of limitation."
Further reliance has been placed in the case of Sambhunath Rai Vs. Board of Revenue; Writ B No.10829 of 1984 decided on 15.11.2022. Relevant portion of the judgment is as under:
"10. Since the petitioner was granted patta in the year 1966 and have matured their right in respect to plot in dispute, as such, fresh consideration of patta cancellation application after expiry of more than 56 years, will ab an abuse of process of law.
12. This writ petition was entertained in the year 1984 and the operation of the order passed by the Board of Revenue was stayed but no counter affidavit has been filed by the State or the Gaon Sabha till date, as such, there is no option except to accept the averment made in the writ petition."
15. On perusal of instant paragraph, it is evident that alternative remedy is no bar where there is violation of principles of natural justice.
16. On the other hand, learned Additional CSC without filing counter affidavit vehemently opposed the arguments advanced by learned counsel for the petitioner and submitted that the proceedings initiated against the petitioner under Section 198 (4) is without lease and pond has been leased out, which is not proper in the eyes of law in view of judgment in the case of Hinch Lal Tiwari.
17. I have considered the submissions advanced by learned counsel for the parties and perused the material on record as well as law reports cited by learned counsel for the petitioner.
18. For deciding the controversy involved in the matter, relevant portion of Section 198 (4) of U.P. Z.A. & L.R. Act is being quoted below:
"198. Order of preference in admitting persons to land under Sections 195 and 197.
(1) In the admission of persons to land as [bhumidhar with non-transferable rights] [Substituted by U.P. Act No. 8 of 1977 (w.e.f. 28.01.1977).] or asami under Section 195 or Section 197 (hereinafter in this section referred to as allotment of land) the Land Management Committee shall, subject to any order made by a Court under Section 178 observe the following order of preference :
(a) landless widow, sons, unmarried daughters or parents residing in the circle of a person who has lost his life by enemy action while in active service in the Armed Forces of the Union;
(b) a person residing in the circle, who has become wholly disabled by enemy action while in active service in the Armed Forces of the Union;
(c) a landless agricultural labourer residing in the circle and belonging to any one of the following categories in the order of preference:-
(i) persons belonging to the Scheduled Castes or the Scheduled Tribes;
(ii) persons belonging to Other Backward Classes;
(iii) persons belonging to the general category living below poverty line.];
(d) any other landless agricultural labourer residing in the circle;
(e) a bhumidhar [* * *] [Word 'sirdar' omitted by U.P. Act No. 6 of 1978 (w.e.f 2101.1978).] or asami residing in the circle and holding land less than 1.26 hectares (3.125 acres);
(f) a landless person residing in the circle who is retired, released or discharged from service other than service as an officer in the Armed Forces of the Union;
(g) a landless freedom fighter residing in the circle who has not been granted political pension; and
(h) any other landless agricultural labourer, not residing in the circle, but residing in the Nyaya Panchayat circle referred to in Section 42 of the United Provinces Panchayat Raj Act, 1947 and belonging to any of the following categories in the order of preference:-
(i) persons belonging to the Scheduled Castes or the Scheduled Tribes;
(ii) persons belonging to Other Backward Classes;
(iii) persons belonging to the general category living below poverty line.] Explanation. - For the purposes of this sub-section-
(1) 'landless' refers to a person who or whose spouse or minor children hold no land as bhumidhar, [* * *] [Omitted by U.P. Act No. 8 of 1977 (w.e.f. 28.01.1977).] or asami and [* * *] [Omitted by U.P. Act No. 30 of 1975.] also held no land as such within two years immediately preceding the date of allotment; and (2) agricultural labourer' means a person whose main source of livelihood is agricultural labour; (3) 'Freedom-Fighter' means an inhabitant of Uttar Pradesh who is certified by the Collector to have participated in the National struggle for freedom during the period between 1930 and 1947 and who in connection with such participation, is similarly certified to have-
(a) undergone a sentence*of imprisonment for a period of at least two months; or
(b) been in jail for a period of at least three months by way of preventive detention or as an undertrial; or
(c) been subjected to at least ten stripes in execution of a sentence of whipping; or
(d) been declared an absconding offender; or
(e) suffered a bullet injury;
and includes a person who was involved in the Peshawar-Khand or who was a recognised member of the Indian National Army or former India Independence League; but does not include a person who was granted pardon on account of his tendering apology or expressing regret for such participation.
(4) Other Backward Classes' means the Backward Classes of citizens specified in Schedule I of the Uttar Pradesh Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994 (U.P. Act No. 4 of 1994).
(5) 'Persons of General Category living below poverty line' means such persons as may be determined from time to time by the State Government.] (2) [ * * *] (3) [The land that may be allotted under sub-section (1) shall not exceed-
(i) in the case of a person falling under Clause (e) such area as together with the land held by him as bhumidhar [* * *] or asami immediately before the allotment would aggregate to 1.26 hectares (3.125 acres);(ii) in any other case, an area of 1.26 hectares (3.125 acres)].(4) The [Collector] [Substituted by U.P. Act No. 20 of 1982 (w.e.f. 18.08.1980).] may of his own motion and shall on the application of any person aggrieved by an allotment of land inquire in the manner prescribed into such allotment and if he is satisfied that the allotment is irregular, he may cancel the allotment and the lease, if any [(4-A) [* * *] (5) No order for cancellation of an allotment or lease shall be made under sub-section (4), unless a notice to show cause is served on the person in whose favour the allotment or lease was made or on his legal representatives :
Provided that no such notice shall be necessary in proceedings for the cancellation of any allotment or lease where such proceedings were pending before the Collector or any other Court or authority on August 18, 1980.
(6) Every notice to show' cause mentioned in sub-section (5) may be issued-
(a) in the case of an allotment of land made before November 10, 1980, (hereinafter referred to as the said date), before the expiry of a period of [seven years] [Substituted by U.P. Act No. 24 of 1986 and shall be deemed always to have been substituted.] from the said date; and
(b) in the case of an allotment of land made on or after the said date, before the expiry of a period of [five years from the date of such allotment or lease or up to November 10, 1987, which ever be later] (7) Where the allotment or lease of any land is cancelled under sub-section (4) the following consequences shall ensue, namely-
(i) the right, title and interest of the allottee or lessee or any other person claiming through him in such land shall case and the land shall revert to the Gaon Sabha;
(ii) the [Collector] [Substituted by U.P. Act No. 27 of 2004 (w.e.f. 23.08.2004).] may direct delivery of possession of such land forthwith to the Gaon Sabha after ejectment of every person holding or retaining possession thereof and may for that purpose use or cause to be used such force as may be necessary.
(8) Every order made by the Collector under sub-section (4) shall, subject to the provisions of Section 333, be final.] (9) Where any person has been admitted to any land specified in Section 132 as a sirdar or bhumidhar with non-transferable rights at any time before the said date and such admission was made with the previous approval of the Assistant Collector-in-charge of the sub-division in respect of the permissible area mentioned in sub-section (3), then notwithstanding anything contained in other provisions of this Act or in the terms and conditions of the allotment or lease under which such person was admitted to that land, the following consequences shall, with effect from the said date ensure, namely-
(a) the allottee or lessee shall be deemed to be an asami of such land and shall be deemed to be holding the same from year to year and the allotment or lease of the land to the extent mentioned above shall not be deemed to be irregular for the purposes of sub-section (4);
(b) the proceedings, if any, pending on the said date before the Collector or any other Court or authority for the cancellation of the allotment or lease of such land, shall abate.]"
19. On perusal of aforesaid provision, it is evident that show cause notice prior to passing of the order is necessary to be given within a week to the aggrieved person and non providing of opportunity of hearing vitiates the order passed under Section 198 (4) of the Act.
20. As per judgment in the case of Suresh Giri (Supra), it has been held that prior to cancellation of allotment of lease, the person adversely affected is entitled to issue show cause notice as provided under Section 198 (5) of the Act. In the case of Jiya Ram & 16 others (Supra), it has been held that beyond time of limitation no notice can be issued under Section 198(4) of the Act. In the case of Sambhunath Rai (Supra), it has been held that in case there is specific averment of violation of show cause notice, statement of fact is treated to be true.
21. In view of facts and circumstances narrated above, I am of the considered opinion that the impugned order has been passed in violation of principles of natural justice and beyond time limit prescribed under law, therefore, the impugned order dated 27.04.2001 is not sustainable in the eyes of law and is liable to be set aside.
22. Accordingly, the order dated 27.04.2001 is hereby quashed.
23. The writ petition succeeds and is allowed.
(Irshad Ali,J.) September 16, 2025 Adarsh K Singh